Pai tried to kill environmental and historic-preservation review of small cells.

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One of Ajit Pai's attempts to eliminate regulation of 5G deployment has been overturned by federal judges.

The Federal Communications Commission last year approved an order that "exempted most small cell construction from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA)," federal judges said in their decision partially overturning the order.

The FCC claimed its deregulation of small cells was necessary to spur deployment of 5G wireless networks. But the commission was sued by the United Keetoowah Band of Cherokee Indians in Oklahoma, the Blackfeet Tribe, and the Natural Resources Defense Council (NRDC). The FCC order was of particular interest to tribal groups because it affected construction on "sites of religious and cultural importance to federally recognized Indian Tribes," the judges noted. "The Order also effectively reduced Tribes' role in reviewing proposed construction of macrocell towers and other wireless facilities that remain subject to cultural and environmental review."

The FCC's opponents argued that the elimination of historic-preservation and environmental review was arbitrary and capricious, that it violated both the NHPA and NEPA, and that the changes to tribes' role in reviewing construction was arbitrary and capricious. A three-judge panel of the US Court of Appeals for the District of Columbia Circuit issued its unanimous ruling today.

Judges wrote that Pai's order "does not justify the Commission's determination that it was not in the public interest to require review of small cell deployments. In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction."

The FCC also failed to "adequately address possible harms of deregulation and benefits of environmental and historic-preservation review," which means the commission's "deregulation of small cells is thus arbitrary and capricious," judges concluded.

Further Reading

The judges did not vacate the FCC order in its entirety, and they remanded some remaining issues back to the commission.

"Today's decision confirms that the FCC cannot just scream '5G' to justify ignoring its duties to tribal nations and to the environment," attorney Andrew Jay Schwartzman, who helped oppose the FCC order, said today. "The decision does give the FCC more latitude than we would prefer on some of the mechanisms for tribal review, but we will deal with that on the remand."

Separately, the Pai FCC's attempt to take certain Lifeline broadband subsidies away from tribal residents was overturned by the same court in February this year.

“Back to the drawing board”

Last year's FCC vote on the small cell order was 3-2, with both Democrats dissenting. FCC Democrat Jessica Rosenworcel hailed the judges' ruling today, writing that "the court just vacated a large part of the FCC's 5G deployment strategy" and that "it's time to go back to the drawing board and do better."

Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small. These fees, which had grown exponentially in the last few years, created incentives for frivolous reviews unrelated to any potential impact on historic sites. Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays. I'm also pleased that the court affirmed our accelerated timelines for reviews. Already, these reforms have resulted in significant new builds.

As for the judges remanding parts of the order back to the FCC, Carr said, "We are reviewing the portion of last March's decision that the DC Circuit did not affirm and look forward to next steps, as appropriate."

Further Reading

Carr's statement also claimed that the FCC's deregulatory moves "have enabled the US to leapfrog our global competitors and secure the largest 5G build in the world."

But FCC changes haven't had the impact that Carr claims. Another FCC order last year eliminated $2 billion worth of local fees charged to carriers for deployment of small cells on public rights-of-way. Carr had claimed that this decision was needed to boost 5G construction, but Verizon said that the FCC decision did nothing to speed up its deployment. Cities are suing the FCC to overturn that order.

Pai won't be happy until 5G equipment is hanging around Honest Abe's neck at the Lincoln Memorial, the Washington Monument is bristling with antennae, and every native burial mound forms the base of a new cell site. F*ck that guy.

Ajit: "deregulation of small cells was necessary to spur deployment of 5G wireless networks"

you know what will spur deployment faster than that? Remove subsidies, contracts, and other form of government handouts for those who have the revenue, but dont deploy.

Jesus, do you want to destroy teleco investment in infrastructure? Because that's how you destroy teleco investment in infrastructure, like building more safe deposit boxes, offshore bank accounts, bank vaults and obscene mattresses to stuff all of that money. You think they are going to build all of that if they don't have the government (and subscriber) largess to just shove in there?

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

For the same reason we dont let oil companies determine which places are not at any risk to the environment, or which holes in the ground for which chemicals wont lead to dirty ground water. We shouldn't let tech companies decide their own regulations.

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

"environmental reasons" does not mean "poses any possible threat to the environment".

I lived in a neighborhood which the local community board objected to new cell towers on "environmental" reasons, the real reason was that home-owners thought they were ugly and would lower their property values

And they were right. Good for them.

Are you saying that sightlines and property values are not part of the environment?

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

For the same reason we dont let oil companies determine which places are not at any risk to the environment, or which holes in the ground for which chemicals wont lead to dirty ground water. We shouldn't let tech companies decide their own regulations.

They have a profit motive, and tendency to lie to everyone

Or at least find "creative truths". E.g. "We found no link between our product and cancer. We didn't look for a link, but we also didn't find it."

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

"environmental reasons" does not mean "poses any possible threat to the environment".

I lived in a neighborhood which the local community board objected to new cell towers on "environmental" reasons, the real reason was that home-owners thought they were ugly and would lower their property values

Because they do. You know how telcos get around that? They camouflage them so that the towers aren't noticeable. Not every complaint is baseless. There's real financial and environmental incentive to not peppering landmarks and national forests with cell towers, mines, and industry. Government is supposed to engage in regulation of industry and set a reasonable balance between commerce and environment.

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

"environmental reasons" does not mean "poses any possible threat to the environment".

I lived in a neighborhood which the local community board objected to new cell towers on "environmental" reasons, the real reason was that home-owners thought they were ugly and would lower their property values

Because they do. You know how telcos get around that? They camouflage them so that the towers aren't noticeable. Not every complaint is baseless. There's real financial and environmental incentive to not peppering landmarks and national forests with cell towers, mines, and industry. Government is supposed to engage in regulation of industry and set a reasonable balance between commerce and environment.

I think this is a red herring of an argument anyway. 5G requires more cells because it's inherently short-range; it's a system almost purpose-designed for dense urban environments, and simply isn't intended for sparsely populated areas, let alone REALLY sparsely populated areas like public lands in the US. He's trying to start an argument over something that's very unlikely to be a problem in the first place.

National parks, for example, are dedicated to preserving the environment in as close to a natural state as possible within their other constraints. Even today, and even at large, heavily visited parks like Yellowstone, cell phone service is sketchy at best, with 3G service - or less - the norm even today. Which is better than it was ten years ago, when service was essentially non-existent.

We'll have thousand-satellite, low-latency LEO cell constellations in orbit long before 5G gets deployed to such places.

I can agree municipalities having leeway to block them for historically significant sites but environmental reasons, seriously ?!

Yes, seriously.

Think harder. Stop if you smell smoke.

In that case we should not have any electrical equipment anywhere because of the risk of fire

"environmental reasons" does not mean "poses any possible threat to the environment".

I lived in a neighborhood which the local community board objected to new cell towers on "environmental" reasons, the real reason was that home-owners thought they were ugly and would lower their property values

And they would be right in doing so as that is the exact meaning of the word environmental in that context.

I'm pleased that the FCC, despite it's increasing push for deregulation, had seen some pushback from the courts. I wish there was standing to oppose the FCC's greenlight to use those portions of the spectrum that interfere with weather forecasting, however. That feels like it may bring the law of unintended consequences into play more than I would like.

I'm pleased that the FCC, despite it's increasing push for deregulation, had seen some pushback from the courts. I wish there was standing to oppose the FCC's greenlight to use those portions of the spectrum that interfere with weather forecasting, however. That feels like it may bring the law of unintended consequences into play more than I would like.

I think this is a red herring of an argument anyway. 5G requires more cells because it's inherently short-range; it's a system almost purpose-designed for dense urban environments, and simply isn't intended for sparsely populated areas, let alone REALLY sparsely populated areas like public lands in the US. He's trying to start an argument over something that's very unlikely to be a problem in the first place.

National parks, for example, are dedicated to preserving the environment in as close to a natural state as possible within their other constraints. Even today, and even at large, heavily visited parks like Yellowstone, cell phone service is sketchy at best, with 3G service - or less - the norm even today. Which is better than it was ten years ago, when service was essentially non-existent.

We'll have thousand-satellite, low-latency LEO cell constellations in orbit long before 5G gets deployed to such places.

Absolutely. I don't see 5G being the next big thing outside of the most densely populated urban areas/cities. Even now, we see that 5G in the lower bands of the 5G range offers no benefit over solid 4G data rates. Worse, the transmission radius, penetration, and problems with line-of sight are far more limiting than 4G. I don't see 5G being useful for rural areas at all. Not that telcos really care much about those folks anyhow.

I’m pretty much always for cutting red tape,But the idea that people could just place cell towers anywhere regardless of environmental or historical significance seems a bit rash.

Imagine the grand canyon littered with tons of small antennae needed to get the short range mm wave coverage.

Surely thats not desirable.

Funny you should mention the Grand Canyon, as there is a telecommunications tower site planning effort for the North and South Rim complexes occurring right now. The court action seems to ensure that the proposed FCC rules, which might have truncated or even aborted it had the FCC gained complete mastery over such actions, will allow the Park Service to make the final decisions on siting and not any of the telecommunications firms.

I’m pretty much always for cutting red tape,But the idea that people could just place cell towers anywhere regardless of environmental or historical significance seems a bit rash.

Imagine the grand canyon littered with tons of small antennae needed to get the short range mm wave coverage.

Surely thats not desirable.

Funny you should mention the Grand Canyon, as there is a telecommunications tower site planning effort for the North and South Rim complexes occurring right now. The court action seems to ensure that the proposed FCC rules, which might have truncated or even aborted it had the FCC gained complete mastery over such actions, will allow the Park Service to make the final decisions on siting and not any of the telecommunications firms.

Imagine that. The Park Service having a say on what happens with Park Service lands. Down right commie talk right there.

Pai won't be happy until 5G equipment is hanging around Honest Abe's neck at the Lincoln Memorial, the Washington Monument is bristling with antennae, and every native burial mound forms the base of a new cell site. F*ck that guy.

You can agree with this decision without engaging this kind of hysteria, no?

Because they do. You know how telcos get around that? They camouflage them so that the towers aren't noticeable.

Ugh. Most of the camouflaged towers I've seen look like cheap Walmart plastic Christmas trees attempting to pretend they're redwoods, only 50 feet tall. To my eye anyway they are more noticeable and a lot uglier than are straight-up undisguised towers.